United States Court of Appeals
Fifth Circuit
F I L E D
REVISED September 21, 2007
June 7, 2007
IN THE UNITED STATES COURT OF APPEALS
FOR THE FIFTH CIRCUIT Charles R. Fulbruge III
Clerk
No. 06-11128
Summary Calendar
BOBBY J. JONES,
Plaintiff-Appellant,
versus
UNIVERSITY OF TEXAS MEDICAL BRANCH HOSPITAL GALVESTON, Medical
Director and Staff Members; DALHART INFIRMARY MEDICAL DIRECTOR &
STAFF MEMBERS; Nurse FIRESTONE; Nurse BROWNLEE, RN,
Defendants-Appellees.
--------------------
Appeal from the United States District Court
for the Northern District of Texas
USDC No. 2:05-CV-264
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Before JOLLY, DENNIS, and CLEMENT, Circuit Judges.
PER CURIAM:*
Bobby J. Jones, Texas prisoner # 608371, appeals the
dismissal of his 42 U.S.C. § 1983 complaint, alleging deliberate
indifference to his serious medical needs. The district court
dismissed the complaint as frivolous and for failure to state a
claim. We review dismissal of a prisoner complaint as frivolous
for abuse of discretion, see Berry v. Brady, 192 F.3d 504, 507
*
Pursuant to 5TH CIR. R. 47.5, the court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
No. 06-11128
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(5th Cir. 1999), and for failure to state a claim de novo.
Harris v. Hegmann, 198 F.3d 153, 156 (5th Cir. 1999).
According to the district court pleadings, Jones was treated
by Nurse Firestone for a spider bite on his leg with a heat pack.
Jones alleged that Firestone failed to check on him after
applying the pack, which caused a severe burn to his leg. He
subsequently sought treatment from Nurse Brownlee when he noticed
a discharge from the dressing on his leg. Brownlee told Jones
she could not treat him because he did not have a lay-in for the
infirmary. Jones immediately sought assistance from prison
guards, who gave Brownlee approval. Brownlee then treated the
leg and ordered an additional 14 days of treatment. Jones
alleged that Brownlee made him wait in the infirmary for two
hours before treating him, however, in retaliation for his
seeking assistance from prison officials.
Prison officials violate the constitutional prohibition
against cruel and unusual punishment when they demonstrate
deliberate indifference to a prisoner’s serious medical needs.
Wilson v. Seiter, 501 U.S. 294, 297 (1991). Deliberate
indifference encompasses only unnecessary and wanton infliction
of pain repugnant to the conscience of mankind. Estelle v.
Gamble, 429 U.S. 97, 105-06 (1976). A showing of deliberate
indifference requires the inmate to submit evidence that prison
officials “‘refused to treat him, ignored his complaints,
intentionally treated him incorrectly, or engaged in any similar
No. 06-11128
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conduct that would clearly evince a wanton disregard for any
serious medical needs.’” Domino v. Texas Dep’t of Criminal
Justice, 239 F.3d 752, 756 (5th Cir. 2001)(citation omitted).
At most, Jones has alleged claims against Firestone and
Brownlee for negligence or medical malpractice, which are
insufficient to give rise to a cause of action under § 1983. See
Varnado v. Lynaugh, 920 F.2d 320, 321 (5th Cir. 1991).
Additionally, Jones’s claim that Brownlee retaliated against him
is conclusional and alleges nothing more than his own personal
belief of retaliatory conduct. See Johnson v. Rodriguez, 110
F.3d 299, 310 (5th Cir. 1997); Woods v. Smith, 60 F.3d 1161, 1166
(5th Cir. 1995).
Jones also argues that the district court dismissed his
complaint without giving him an opportunity to respond to the
defendants’ motion to dismiss. Because the defendants were never
served with the complaint there was no motion requiring a
response from Jones, and the district court was permitted to sua
sponte dismiss the complaint. See Black v. Warren, 134 F.3d 732,
733 (5th Cir. 1998); 28 U.S.C. § 1915A, 1915(e)(2)(b).
Jones also argues that the district court erroneously
dismissed the complaint without conducting a hearing under Spears
v. McCotter, 766 F.2d 179 (5th Cir. 1985), or giving him an
opportunity to amend the complaint. The “principal vehicles
which have evolved for remedying inadequacy in prisoner pleadings
are the Spears hearing and a questionnaire to bring into focus
No. 06-11128
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the factual and legal bases of prisoners’ claims.” Eason v.
Thaler, 14 F.3d 8, 9 (5th Cir. 1994). The district court here
used a questionnaire instead of a Spears hearing, and Jones fails
to show the district court’s choice of this method prevented him
from adequately presenting his claims. Cf. Green v. McKaskle,
788 F.2d 1116, 1120 (5th Cir. 1986).
Jones’s appeal is without arguable merit and is dismissed as
frivolous. See Howard v. King, 707 F.2d 215, 220 (5th Cir.
1983); 5TH CIR. R. 42.2. Jones is cautioned that the district
court’s dismissal of his complaint and the dismissal of this
appeal count as strikes under 28 U.S.C. § 1915(g) and that if he
accumulates three strikes, he will not be able to proceed in
forma pauperis (IFP) in any civil action or appeal filed while he
is incarcerated or detained in any facility unless he is under
imminent danger of serious physical injury. See Adepegba v.
Hammons, 103 F.3d 383, 388 (5th Cir. 1996).
APPEAL DISMISSED; SANCTION WARNING ISSUED.